Suing the Tobacco and Lead Pigment Industries

Government Litigation as Public Health Prescription

Donald G. Gifford

Publication Year: 2010

The topic, how tort law evolved over time into a system that allowed, for a moment at least, a parens patriae form of massive litigation against corporations, is exceedingly interesting and important. Gifford's treatment of this topic is highly informative, engaging, insightful, very current, and wise. ---David Owen, Carolina Distinguished Professor of Law, and Director of Tort Law Studies, University of South Carolina In Suing the Tobacco and Lead Pigment Industries, legal scholar Donald G. Gifford recounts the transformation of tort litigation in response to the challenge posed by victims of 21st-century public health crises who seek compensation from the product manufacturers. Class action litigation promised a strategy for documenting collective harm, but an increasingly conservative judicial and political climate limited this strategy. Then, in 1995, Mississippi attorney general Mike Moore initiated a parens patriae action on behalf of the state against cigarette manufacturers. Forty-five other states soon filed public product liability actions, seeking both compensation for the funds spent on public health crises and the regulation of harmful products. Gifford finds that courts, through their refusal to expand traditional tort claims, have resisted litigation as a solution to product-caused public health problems. Even if the government were to prevail, the remedy in such litigation is unlikely to be effective. Gifford warns, furthermore, that by shifting the powers to regulate products and to remediate public health problems from the legislature to the state attorney general, parens patriae litigation raises concerns about the appropriate allocation of powers among the branches of government. Donald G. Gifford is the Edward M. Robertson Research Professor of Law at the University of Maryland School of Law.

Contents

Introduction

“The most important public health litigation ever in history”—
that is how Mississippi attorney general Michael C. Moore described
the lawsuit he had filed on behalf of his state against the tobacco
industry in 1994. He boasted to a New York Times reporter,

Part I: The Tort System's Early Responses to Product-Caused Diseases

1. The Morning after the Consumer Century

The 1893 World’s Columbian Exposition, held in Chicago,
was America’s way of letting the world know that it had left behind its agrarian
childhood and was emerging as a world leader in a new era of industrialized
consumerism. Here, the Ferris wheel, Juicy Fruit gum, Shredded
Wheat, Quaker Oats, and Pabst Blue Ribbon beer...

2. Product-Caused Diseases Confront the Law of the Iron Horse

The common law, or judge-made law, typically governs
claims filed by victims against those they believe should be held legally responsible
for causing their injuries. It relies on basic principles of law established
by judges in previous cases, or precedents. The operating premise
that lies behind this precedent-based system is that a certain degree of fairness
is assured when the court...

3. The First Wave of Challenges to the Individual Causation Requirement

By the 1970s, the public understood the strong causal link
between lung cancer and smoking, the effects of low doses of lead on children
in terms of loss of intelligence, and other links between product exposure
and detrimental health consequences. At the same time, changes in
the law—particularly the adoption of strict products liability...

Part II: Public Products Litigation as a Response to Regulatory Failure

4. The Seeds of Government-Sponsored Litigation

The inability of victims of tobacco-related illnesses and
childhood lead poisoning to recover against manufacturers by using the
usual product liability claims might have spelled the end of such litigation.
Instead, four developments occurring between the mid-1960s and the mid-
1980s set the stage for a new form of litigation, actions brought by states
and municipalities against product manufacturers, which began in 1995...

5. A Failure of Democratic Processes? Legislative Responses to the Public Health Problems Caused by Tobacco and Lead Pigment

The responsibility for assuring that products are safe for
consumers is most often handled in the American political structure by legislatures
and the administrative agencies they create. To be sure, any time
a court orders a manufacturer to pay damages to consumers or others injured
by its products, such judgment produces incentives for manufacturers
to avoid creating harmful products...

6. The Government as Plaintiff: Parens Patriae Actions against Tobacco and Gun Manufacturers

Until the mid-1990s, the manufacturers of tobacco and
lead products still had not been forced to contribute financially to resolving
the public health problems resulting from the use of their products. To recapitulate,
courts most often rejected claims against tobacco manufacturers
because of the cigarette consumer’s own conduct in deciding to smoke...

7. Judicial Rejection of Recovery for Collective Harm: Public Nuisance and the Rhode Island Paint Litigation

The viability of parens patriae litigation seeking to hold
manufacturers accountable for product-caused health problems would ultimately
be decided not in the tobacco or handgun litigation but in state actions
against lead pigment manufacturers. Shortly after the parties in the
tobacco litigation finalized the Master Settlement Agreement, Ron Motley...

Part III: A Critique of Public Products Litigation

8. Do Litigation Remedies Cure Product-Caused Public Health Problems?

Viewed super‹cially, the goal of the parens patriae tobacco
litigation was to compensate the states for their expenditures resulting
from tobacco-related diseases. Retribution also played a role: Ron Motley,
one of the lead attorneys in the tobacco litigation, argued, “These
gangsters have gotten a free ride for forty years.”1 The most important goal...

9. Impersonating the Legislature: State Attorneys General and Parens Patriae Products Litigation

Litigation filed against product manufacturers by state attorneys
general attempts to change the structure of either product regulation
or government programs seeking to prevent product-caused public
health problems. For example, tobacco manufacturers today operate under
a set of detailed regulations governing many aspects of their operations, including
advertising directed toward young people...

Conclusion

Nature abhors a vacuum. At the close of the twentieth
century, tobacco-related diseases and childhood lead poisoning, along with
diseases caused by asbestos exposure, constituted product-caused public
health problems of an unprecedented scope. Public health advocates perceived
that the ordinary regulatory processes of the legislative branch and
the administrative agencies it creates...

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